University of Arkansas System Division of Agriculture [email protected] $ (479) 575-7646 An Agricultural Law Research Article Promises of a Viable Homeland, Reality of Selective Reclamation: A Study of the Relationship Between the Winters Doctrine and Federal Water Development in the Western United States by Monique C. Shay Originally published in ECOLOGY LAW QUARTERLY 19-3 ECOLOGY L.Q. 547 (1992) www.NationalAgLawCenter.org Promises of a Viable Homeland, Reality of Selective Reclamation: A Study of the Relationship Between the Winters Doctrine and Federal Water Development in the Western United States Monique C. Shay· CONTENTS Introduction 548 I. Settlement of the West and Non-Indian Water Development 549 A. Free Land for Farmers - The Homestead Acts. .. 549 B. Reclamation - Where There's a Will, There's Federal Financing .......................................... .. 550 C. State Water Law - Prior Appropriation. .. 552 II. Water for the Reservations. .. .. .. ... 555 A. Assimilation Through Allotment. .. 555 B. Development of Water Resources - Indian Irrigation Projects..................................... 557 C. A Pastoral and Civilized People.. .. .. .. .. .. .. .. .. 562 D. The Winters Doctrine . .. 565 E. Selective Reclamation. .............................. .. 570 III. Battle in the Courthouse ................................ .. 574 A. Incompatibility of Reserved Rights with Prior Appropriation. ..................................... .. 574 B. Arizona v. California.................................. 575 C. Use of the Winters Water - Where, How, and by Whom 579 D. The State Court Arena.. .. .. .. .. .. .. .. .. .. .. 583 Conclusion................................................ 586 Copyright © 1992 by EcOLOGY LAW QUARTERLY. • J.D. 1992, School of Law (~a1t Hall), University of California at Berkeley; B.A. 1989, University of California at Los Angeles. The author would like to thank Brett Moffatt and Pat Gordon for their advice and suggestions regarding this comment. 547 548 ECOLOGY LAW QUARTERLY [Vol. 19:547 INTRODUCTION Indian water rights are currently a source of vigorous debate and controversy. Conflicting water rights claims are being heard in courts throughout the Western United States. The stakes have been estimated at 45 million acre-feet of water per year in sixty western water basins. The affected parties include over 100 Indian tribes and the non-Indian rural and urban communities currently using the water which the reser­ vation communities claim. I Indigenous Americans2 generally claim the right to water for their reservations under the aegis of a 1908 Supreme Court case,3 while non-Indians defend their right under state water laws. As a result, "Indian water rights cases are typically as complex as major antitrust actions."4 The goal of this comment is to put the current water claims in their historical context, in the hope that knowledge of the past will provide a guide for the future. The history of these claims involves the interrela­ tionship between the United States government, Indian tribes, and west­ ern water development. 5 This comment is divided into three sections. The first looks at the "settlement" of the West and the dispersal of water and water rights to non-Indians. The second section considers the nature of Indian water rights and reviews the "development" of water for In­ dian use. The final section examines the contemporary "water battle­ ground" in the courts and the legal positions put forward by the competing interests. 1. Michael R. Moore, Native American Water Rights: Efficiency and Fairness, 29 NAT. RESOURCES J. 763, 766 (1989). See also JOHN A. FOUc:-WILLlAMS, WHAT INDIAN WATER MEANS TO THE WEST (1982) for a thorough description of existing Indian water claims. For a discussion of the status of recent Indian water suits and/or negotiations as of April, 1990, see LLOYD BURTON, AMERICAN INDIAN WATER RIGHTS AND THE LIMn'S OF LAW 48-58 (1991). 2. Although the terms "Indians" and "Indigenous Americans" are used interchangea­ bly in this comment, the latter is, of course, more historically accurate. "Indian. The label is ours [non-Indian's], not his. He has been an Indian for only 500 years. For as many as twenty-five thousand years, he has been Ottawa, Dakota, Shoshone, Cherokee - or one of several hundred distinct people [who] controlled this continent." CmzENs' ADVOCACY CENTER, OUR BROTHER'S KEEPER: THE INDIAN IN WHITE AMERICA vii (Edgar S. Cahn ed., 1969) [hereinafter CAHN]. 3. Winters v. United States, 207 U.S. 564 (1908). 4. CHARLES F. WILKINSON, AMERICAN INDIANS, TIME, AND THE LAW: NATIVE S0­ CIETIES IN A MODERN CoNSTITUTIONAL DEMOCRACY 9 (1987) [hereinafter TIME AND LAW]. 5. "Water development" here means the harnessing of water in order to grow crops, mine for minerals, cool machinery in a factory, or even create lush golf courses in the desert. "In the American West water almost always must be stored and diverted before it is useful for economic development." DANIEL McCooL, CoMMAND OF THE WATERS: IRON TRIANGLES, FEDERAL WATER DEVELOPMENT, AND INDIAN WATER 4 (1987). 1992] PROMISED HOMELANDS 549 I SETTLEMENT OF THE WEST AND NON-INDIAN WATER DEVELOPMENT In order to explain the current status of Indian versus non-Indian water rights, it is important to trace the historical roots of the contro­ versy. This first section traces, in a very general way, the history of the West in the 19th and 20th centuries. During this time, the West was "settled,"6 and the foundations of American water law and development policy were established. A. Free Land for Farmers - the Homestead Acts In the second decade of the 19th century an American explorer of the West labeled the whole territory between the Mississippi River and the Rocky Mountains "the Great American Desert," a phrase and image that held for almost half a century.7 While the West, with its gold and animal pelts, beckoned to a certain type of frontiersman, "the life of a trapper, a hunter, a fortune seeker ... was not what the vast majority of Americans sought."s The average American wanted to climb to prosper­ ity in the tamer, more traditional fashion of owning land and farming. The Federal Government, sharing this ideal, decided the whole continent should be settled by reliable citizens.9 Amidst settlers' self-interested claimslo that the Great American Desert really was not a desert, II the government began to pass laws which gave away land in the West to those who would settle upon it and begin to farm. 6. "Settled" is placed in quotation marks because the use of the word in describing the arrival of Europeans "vaguely implies that pre-existing populations did not classify as human­ ity, for it is not used to apply to Indians; only Europeans 'settle.''' FR.ANCIS JENNINGS, THE INVASION OF AMERICA: INDIANS, CoLONIALISM, AND THE CANT OF CoNQUEST 32 (1975). 7. MARC REISNER, CADILLAC DESERT 19-20 (1987). Reisner details how awed, and even horrified, various explorers were by the West's vast space and dryness. Id 8. Id at 25. In the 1830's, some Americans believed "that the Louisiana Purchase had been a waste of SI5 billion - that the whole billion acres would remain as empty as ... the Sahara." Id 9. The Federal Government still needed to secure its territory, safe from the threat of a European attempt to acquire or settle it. See MARIAN CuWSON, AMERICA'S LAND AND ITS USES 25 (1972). Clawson notes, for example. that Russia occupied Fort Ross, about one hun­ dred miles north of San Francisco as late as 1841. Id 10. REISNER, supra note 7, at 46, suggests that the greatest opportunity offered by the homestead legislation was the possibility of earning a little honest graft. By conservative esti­ mates, 95% of the final proofs under the Desert Land Act were fraudulent. Id. See also infra note 17 and accompanying text. II. For a number of years after 1865, a long humid cycle brought uninterrupted above­ average rainfall to the plains. REISNER, supra note 7, at 37. The coincidence of this rain with the headlong advance of western settlement led noted climatologists to conclude that "rain follows the plow"; as population increases. the moisture will increase since God wants these people "to occupy a wild continent." Id. 550 ECOLOGY LAW QUARTERLY [Vol. 19:547 Federal public land policy'" for I50 years aimed at giving "the pio­ neer, the small farmer seeking a new life on the frontier ... cheap or free land, there to develop communities, commerce, and other attributes of civilization."12 The Homestead Act of 1862,13 for example, gave a settler up to 160 acres of land in return for his residence on the property for five years, some improvements, and payment of very modest fees. I" How­ ever, Congress' land dispersal plans did not unfold entirely smoothly be­ cause most of the West is extremely arid. While lands east of the hundredth meridianls were claimed quickly, those west of it were much less attractive; such land was too dry to farm without expensive irriga­ tion systems. 16 In response, Congress passed the Desert Land Act, 17 permitting settlers to claim larger tracts of land (640 acres) "at 25 cents an acre, with a patent to follow upon proof that the settler had irrigated the land."ls It was hoped that irrigation farming on these larger tracts could be profitable. B. Reclamation - Where There's a Will, There's Federal Financing "Reclamation" of the West, however, proved to be more difficult and expensive than had been imagined. 19 It was soon apparent that "small farmers needed more than a legal doctrine to get water to their fields"; they needed money to build storage dams, canals, and laterals for transporting the water.20 The Desert Land Act resulted in irrigation of 12. GEORGE C. COGGINS & CHARLES F. WILKINSON, FEDERAL PUBLIC LAND AND RESOURCES LAW 86 (2d ed. 1987). The authors conclude that the official policy succeeded in that millions were able to build new lives, the country was developed and unified, and the nation rapidly rose to pinnacles of wealth and power.